-
No. 12-50028
In the
United States Court of AppealsFor the Fifth Circuit
UNITED STATES OF AMERICA,Appellee,
v.
JESSE JOE GUTIERREZ,Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
BRIEF FOR THE UNITED STATES
JOHN MURPHY LANNY A. BREUERAttorney for the United States,
Assistant Attorney GeneralActing Under Authority Conferred By 28
U.S.C. § 515 JOHN D. BURETTA
Acting Deputy Assistant Attorney DOUGLAS W. GARDNER General
Assistant United States AttorneyWestern District of Texas JOHN M.
PELLETTIERI
Attorney, U.S. Department of JusticeCriminal Division, Appellate
Section 950 Pennsylvania Ave., N.W. Rm. 1264
Washington, D.C. 20530 (202) 307-3766
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STATEMENT REGARDING ORAL ARGUMENT
The government does not oppose defendant’s request for oral
argument.
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TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT
................................... i
INTRODUCTORY STATEMENT
............................................................. 1
JURISDICTIONAL STATEMENT
............................................................ 2
STATEMENT OF THE ISSUES
.................................................................
2
STATEMENT OF THE CASE
...................................................................
3
STATEMENT OF FACTS
..........................................................................
4
I. Legal Background
...............................................................................
4
A. The Insanity Defense Reform Act of 1984
.................................. 4
B. Involuntary Treatment of Inmates on Dangerousness Grounds:
Washington v. Harper ........................ 5
C. The 1992 BOP Regulations
........................................................ 6
D. Involuntary Treatment of Inmates on Competency Grounds: Sell
v. United States ............................... 8
E. This Court Adopts an Administrative Exhaustion Requirement in
United States v. White .................... 9
II. Proceedings Below
............................................................................
10
A. Gutierrez is Indicted for Threatening toKill the President
and Others ...................................................
10
B. The District Court Finds That Gutierrez is Not Competent to
Stand Trial ..................................................
11
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C. BOP Determines That Involuntary Medication is NotWarranted on
Harper Grounds and Refers the Matter to the District Court for a
Sell Hearing ..................................... 12
D. The District Court Holds a Sell Hearing and Orders
Involuntary Medication
........................................................... 14
E. Gutierrez Appeals the Involuntary Medication Order
......................................................................................
15
1. Amended BOP Regulations Take Effect .........................
15
2. This Court Vacates the Order and Remands for Additional
Administrative BOP Proceedings .................. 16
F. BOP Holds a Hearing and Approves InvoluntaryMedication of
Gutierrez to Make Him Competent to Stand Trial
..........................................................................
18
G. The District Court Holds a Second Sell Hearing
....................... 21
H. The District Court Again Approves Involuntary Medication
..............................................................................
23
SUMMARY OF ARGUMENT
.................................................................
25
ARGUMENT
...........................................................................................
30
I. BOP Adequately Complied with the 1992 Regulations
...................... 30
A. Standard of Review
.................................................................
30
B. Argument
................................................................................
31
1. The BOP Hearing Complied with the 1992 Regulations
....................................................................
31
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2. Any Shortcomings in Compliance with the 1992 Regulations Was
Harmless ..................................... 39
II. Important Government Interests Justify Gutierrez’s
InvoluntaryMedication
.......................................................................................
42
A. Standard of Review
.................................................................
43
B. Argument
................................................................................
44
1. The District Court Did Not Employ an Incorrect Analysis, And
Any Such Error Would Not RequireReversal
.........................................................................
44
2. There Are Important Government Interests in Bringing
Gutierrez to Trial for Serious Crimes ................ 46
3. Special Circumstances Do Not Lessen the Government’s
Interests ...................................................
49
CONCLUSION
........................................................................................
61
CERTIFICATE OF COMPLIANCE
........................................................ 62
CERTIFICATE OF SERVICE
..................................................................
63
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TABLE OF AUTHORITIES
FEDERAL CASES
Addington v. Texas, 441 U.S. 418 (1979)
............................................. 43, 59
Auer v. Robbins, 519 U.S. 452 (1997)
........................................................ 30
Godinez v. Moran, 509 U.S. 389 (1993)
..................................................... 56
Gulf Guar. Life Ins. Co. v. Conn. Gen. Life Ins. Co., 304 F.3d
476 (5th Cir. 2002)
...................................................................
45
Hall v. Schweitzer, 660 F.2d 116 (5th Cir. 1981)
......................................... 31
Jones v. United States, 463 U.S. 354 (1983)
................................................ 59
Kohli v. Gonzales, 473 F.3d 1061 (9th Cir. 2007)
....................................... 31
Schaefer v. McHugh, 608 F.3d 851 (D.C. Cir. 2010)
................................... 31
Seales v. Holder, 354 Fed. Appx. 875 (5th Cir. 2009)
.................................. 31
Sell v. United States, 539 U.S. 166 (2003)
............................................ passim
Shannon v. United States, 512 U.S. 573 (1994)
....................................... 4, 58
St. Anthony Hosp. v. U.S. Dep’t of Health & Human Servs.,
309 F.3d 680 (10th Cir. 2002)
................................................................
31
Texas Coal. of Cities for Util. Servs. v. FCC, 324 F.3d 802 (5th
Cir. 2003)
..................................................................
30
United States v. Bradley, 417 F.3d 1107 (10th Cir. 2005)
............................ 51
United States v. Bush, 585 F.3d 806 (4th Cir. 2009)
................... 46, 49, 53, 54
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United States v. Diaz, 630 F.3d 1314 (11th Cir. 2011)
................................ 43
United States v. Dunigan, 555 F.3d 501 (5th Cir. 2009)
.............................. 45
United States v. Eff, 524 F.3d 712 (5th Cir. 2008)
....................................... 57
United States v. Evans, 404 F.3d 227 (4th Cir. 2005)
........................ 46, 47, 52
United States v. Fazio, 599 F.3d 835 (8th Cir. 2010)
................................... 43
United States v. Gomes, 387 F.3d 157 (2d Cir. 2004)
........................... 51, 56
United States v. Grape, 549 F.3d 591 (3d Cir. 2008)
.................. 46, 49, 51, 54
United States v. Green, 532 F.3d 538 (6th Cir. 2008)
.................................. 47
United States v. Gutierrez, 443 Fed. Appx. 898 (5th Cir. 2011)
............ passim
United States v. Hernandez-Vasquez, 513 F.3d 908 (9th Cir. 2008)
............. 47
United States v. Holman, 532 F.3d 284 (4th Cir. 2008)
............................... 54
United States v. Loughner, 672 F.3d 731 (9th Cir. 2012)
....................... 38, 41
United States v. Murdoch, 98 F.3d 472 (9th Cir. 1996)
............................... 58
United States v. Nicklas, 623 F.3d 1175 (8th Cir. 2010)
.............. 46, 47, 49, 54
United States v. Palmer, 507 F.3d 300 (5th Cir. 2007)
.......................... passim
United States v. Ruiz-Gaxiola, 623 F.3d 684 (9th Cir. 2010)
................. 51, 53
United States v. Sarabia, 661 F.3d 225 (5th Cir. 2011)
.................................. 2
United States v. Valenzuela-Puentes, 479 F.3d 1220 (10th Cir.
2007) ........................................................ 46,
53
United States v. Weed, 389 F.3d 1060 (10th Cir. 2004)
............................... 58
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United States v. Weston, 255 F.3d 873 (D.C. Cir. 2001)
....................... 56, 57
United States v. White, 431 F.3d 431 (5th Cir. 2005)
................... 9, 10, 13, 17
Wang v. Ashcroft, 260 F.3d 448 (5th Cir. 2001)
.......................................... 30
Washington v. Harper, 494 U.S. 210 (1990)
......................................... passim
FEDERAL STATUTES AND RULES
18 U.S.C. § 17
........................................................................................
5, 57
18 U.S.C. § 115
......................................................................................
3, 11
18 U.S.C. § 115(b)(4)
.................................................................................
47
18 U.S.C. § 871
.....................................................................................
3, 11
18 U.S.C. § 871(a)
......................................................................................
47
18 U.S.C. § 879
......................................................................................
3, 11
18 U.S.C. § 879(a)
......................................................................................
47
18 U.S.C. § 3231
..........................................................................................
2
18 U.S.C. § 4241(d)
................................................................................
4, 12
18 U.S.C. § 4243(a)
................................................................................
5, 58
18 U.S.C. § 4243(c)
......................................................................................
5
18 U.S.C. § 4243(d)
...........................................................................
5, 58, 59
18 U.S.C. § 4243(e)
......................................................................................
5
18 U.S.C. § 4243(f)
....................................................................................
58
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18 U.S.C. § 4246(a)
......................................................................................
4
18 U.S.C. § 4246(d)
...........................................................................
4, 50, 59
28 C.F.R. § 549.43(a)(1) (2010)
.............................................................. 7,
31
28 C.F.R. § 549.43(a)(2) (2010)
.............................................................. 7,
32
28 C.F.R. § 549.43(a)(3) (2010)
.............................................................. 7,
32
28 C.F.R. § 549.43(a)(4) (2010)
..................................................................
32
28 C.F.R. § 549.43(a)(5) (2010)
...........................................................
passim
28 C.F.R. § 549.43(a)(6) (2010)
.............................................................. 7,
32
28 C.F.R. § 549.46(a)(7) (2012)
..................................................................
16
28 C.F.R. § 549.46(b)(2) (2012)
..................................................................
16
28 U.S.C. § 1291
..........................................................................................
2
Fed. R. App. P. 4(b)(1)(A)(i)
........................................................................
2
Fed. R. Crim. P. 52(a)
................................................................................
31
SENTENCING GUIDELINES
U.S.S.G. § 2A6.1(a)(1)
...............................................................................
48
U.S.S.G. § 2A6.1(b)(1)
...............................................................................
48
U.S.S.G. § 2A6.1(b)(2)
...............................................................................
48
U.S.S.G. § 2A6.1(b)(4)
...............................................................................
48
U.S.S.G. § 2A6.1 cmt. 3
.............................................................................
48
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U.S.S.G. § 2A6.1 cmt. 4
.............................................................................
48
U.S.S.G. § 3A1.2(a)
...................................................................................
48
U.S.S.G. § 3A1.2(b)
...................................................................................
48
U.S.S.G. § 3D1.4
.......................................................................................
48
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INTRODUCTORY STATEMENT
Defendant Jesse Joe Gutierrez has been charged with threatening
to kill
President Barack Obama, former Presidents George H.W. Bush and
George
W. Bush, and a U.S. Secret Service agent. He currently is not
competent to
stand trial and refuses antipsychotic medication to treat his
mental illness. The
government accordingly seeks judicial approval to administer the
medication
involuntarily so that the case against Gutierrez may
proceed.
The district court has twice entered orders approving
involuntary
medication after holding hearings in accordance with Sell v.
United States, 539
U.S. 166 (2003). This Court vacated the first order upon
concluding that BOP
first had to hold an administrative hearing to consider if
“medication [is]
justified as a medical determination.” United States v.
Gutierrez, 443 Fed.
Appx. 898, 903 (5th Cir. 2011) (unpublished). After BOP held its
hearing and
determined that involuntary medication to restore Gutierrez to
competency is
in Gutierrez’s best medical interest, the district court held a
second Sell hearing
and entered another involuntary medication order.
Gutierrez asks this Court to remand for another administrative
hearing,
arguing that the BOP hearing on competency restoration was
deficient. BOP
medical officials complied with the applicable regulations,
however, and
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medical opinion is unanimous that treatment with antipsychotic
medication is
medically proper. It is therefore now appropriate for this Court
to address
Gutierrez’s narrow challenge to the merits of the district
court’s Sell order,
namely his claim that important government interests do not
justify his
involuntary medication. The government respectfully requests
that this Court
reject Gutierrez’s challenge and allow this prosecution to
proceed.
JURISDICTIONAL STATEMENT
The district court entered an order requiring Gutierrez’s
involuntary
medication on January 10, 2012. SR2 190-212 (order).1 Gutierrez
filed a timely
notice of appeal. SR2 213 (notice of appeal); see Fed. R. App.
P. 4(b)(1)(A)(i).
The district court had jurisdiction under 18 U.S.C. § 3231. The
district court’s
order is an appealable collateral order. Sell, 539 U.S. at 176.
This Court’s
jurisdiction therefore rests on 28 U.S.C. § 1291. See, e.g.,
United States v.
Sarabia, 661 F.3d 225, 228-29 (5th Cir. 2011).
STATEMENT OF THE ISSUES
1. Whether BOP adequately complied with its 1992 regulations
when
it held a hearing to consider involuntary medication to make
Gutierrez
1“R” refers to the record on appeal. “SR1” refers to the first
supplementto the record on appeal. “SR2” refers to the second
supplement to the recordon appeal. “Br.” refers to defendant’s
brief. “Dkt.” refers to district courtdocket entries. “GRE” refers
to the government’s record excerpts.
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competent to stand trial.
2. Whether important governmental interests justify the
involuntary
medication of Gutierrez to make him competent to stand
trial.
STATEMENT OF THE CASE
On September 15, 2009, a federal grand jury in the Western
District of
Texas returned an indictment charging Gutierrez with threatening
to kill and
inflict bodily harm upon President Barack Obama, in violation of
18 U.S.C. §
871; threatening to kill and inflict bodily harm upon former
Presidents George
W. Bush and George H.W. Bush, in violation of 18 U.S.C. § 879;
and
threatening to assault and murder a Special Agent of the United
States Secret
Service with the intent to retaliate against the agent on
account of the
performance of the agent’s official duties, in violation of 18
U.S.C. § 115. R 24-
25 (indictment). The district court found that Gutierrez was not
competent to
stand trial and, after a hearing, entered an order compelling
Gutierrez’s
involuntary medication. R 56-64 (order). This Court vacated the
order and
remanded for additional proceedings. Gutierrez, 443 Fed. at 908;
see SR2 24-
42 (opinion). On January 10, 2012, after additional proceedings,
the district
court again entered an order requiring Gutierrez’s involuntary
medication to
make him competent to stand trial. SR2 190-212 (order). This
appeal followed.
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STATEMENT OF FACTS
I. Legal Background
A. The Insanity Defense Reform Act of 1984
Under the Insanity Defense Reform Act of 1984, enacted after
John
Hinckley’s attempt to kill President Ronald Reagan, if a
district judge finds that
a defendant is not competent to stand trial, the court must
commit the
defendant to the custody of the Attorney General. 18 U.S.C. §
4241(d); see
Shannon v. United States, 512 U.S. 573, 577 (1994) (discussing
statute’s
background). The Attorney General must hospitalize the defendant
for
treatment and restoration to competency. 18 U.S.C. §
4241(d).
If a defendant is still not competent for trial after a
prescribed period of
time or if the charges have been dismissed for reasons solely
related to the
defendant’s mental condition, the district court must hold a
hearing to
determine whether the defendant should be committed. 18 U.S.C. §
4246(a);
see 18 U.S.C. § 4241(d). If the district court finds by “clear
and convincing
evidence” that the defendant’s release would “create a
substantial risk of bodily
injury to another or serious damage to property of another,” the
defendant
must be committed to the custody of the Attorney General for
hospitalization
in a state or federal facility. 18 U.S.C. § 4246(d).
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If a defendant is made competent and raises an insanity defense
at trial,
he has the burden under the Insanity Defense Reform Act of
proving by “clear
and convincing evidence” that at the time of the offense he “was
unable to
appreciate the nature and quality or the wrongfulness of his
acts.” 18 U.S.C. §
17. If the defendant is found not guilty by reason of insanity,
the district court
must commit the defendant to a suitable facility and hold a
hearing within 40
days to determine whether he is eligible for release. 18 U.S.C.
§§ 4243(a), (c) &
(e). The defendant bears the burden of proving his eligibility
for release by
showing that “his release would not create a substantial risk of
bodily injury to
another person or serious damage of property of another.” 18
U.S.C. § 4243(d).
B. Involuntary Treatment of Inmates on Dangerousness
Grounds:Washington v. Harper
While in the Attorney General’s custody, inmates have a
constitutionally
protected “liberty interest” in “avoiding the unwanted
administration of
antipsychotic drugs.” Washington v. Harper, 494 U.S. 210, 221
(1990). In
Harper, the Supreme Court concluded that the government may
nonetheless
involuntarily treat an inmate with antipsychotic drugs “if the
inmate is
dangerous to himself or others and the treatment is in the
inmate’s medical
interest.” 494 U.S. at 227.
Harper further concluded that a judicial hearing was not
required before
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prison officials could forcibly administer medication to Harper
on
dangerousness grounds because the administrative procedures
Washington
prison officials followed afforded Harper with due process. 494
U.S. at 228-36.
Under the Washington procedures, an inmate was entitled to a
hearing before
a panel of three prison officials not involved in the inmate’s
treatment (a
psychiatrist, a psychologist, and a prison administrator); the
inmate had to
receive advance notice of the hearing; the inmate was entitled
to be present at
the hearing, present evidence, cross- examine witnesses, and
receive assistance
from a lay adviser; the psychiatrist and at least one other
member of the panel
had to determine that the inmate was gravely ill or a danger to
himself or
others; and the inmate had the right to appeal the decision to
the
superintendent of the correctional center. Id. at 215-16.
C. The 1992 BOP Regulations
In 1992, in light of Harper, the Bureau of Prisons (BOP)
enacted
regulations adopting procedures similar to those that Harper
deemed sufficient
to do away with the need for a judicial hearing. See
Administrative Safeguards
for Psychiatric Treatment and Medication, 57 Fed. Reg. 53820-01
(proposed
Nov. 12, 1992) (to be codified at 28 C.F.R. § 549.43). The 1992
regulations
specified that before prison officials could order involuntary
medication and
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forcibly administer medication to an inmate, a hearing had to be
conducted by
a psychiatrist who was not currently involved in the inmate’s
diagnosis or
treatment. 28 C.F.R. § 549.43(a)(3) (2010). Under the
regulations, the inmate
was entitled to advance notice of the hearing, to assistance
from a staff
representative, and to present evidence at the hearing. 28
C.F.R. §§
549.43(a)(1) & (2) (2010).
Although Harper addressed involuntary medication due to
grave
disability or dangerousness, the BOP regulations also purported
to authorize
BOP to forcibly administer medication to make an inmate
competent for trial.
Under the regulations, the non-treating psychiatrist who
conducted the hearing
had to “determine whether treatment or psychotropic medication
[1] is
necessary in order to attempt to make the inmate competent for
trial or [2] is
necessary because the inmate is dangerous to self or others, is
gravely disabled,
or is unable to function in the open population of a mental
health referral
center or a regular prison.” 28 C.F.R. § 549.43(a)(5) (2010).
The psychiatrist
had to “prepare a written report regarding the decision,” id.,
and the inmate
was entitled to appeal the decision to prison administrators, 28
C.F.R. §
549.43(a)(6) (2010).
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D. Involuntary Treatment of Inmates on Competency Grounds:
Sellv. United States
In 2003, in Sell v. United States, 539 U.S. 166 (2003), the
Supreme Court
held that the government may involuntarily administer
antipsychotic drugs to a
mentally ill criminal defendant for the sole purpose of making
the defendant
competent to stand trial only if a court finds that:
(1) “important governmental interests are at stake,” id. at
180;
(2) “involuntary medication will significantly further those
concomitantstate interests,” i.e., “administration of the drugs is
substantiallylikely to render the defendant competent to stand
trial,” id. at 181(emphasis in original);
(3) “involuntary medication is necessary to further those
interests,” i.e.,“any alternative, less intrusive treatments are
unlikely to achievesubstantially the same results,” id. (emphasis
in original); and
(4) “administration of drugs is medically appropriate, i.e., in
the patient’sbest medical interest in light of his medical
condition,” id.(emphasis in original).
Courts sometimes refer to these as the four “Sell factors.”
United States v.
Palmer, 507 F.3d 300, 303 (5th Cir. 2007).
Sell further explained that a court need not consider
involuntary
medication on competency grounds “if forced medication is
warranted for a
different purpose, such as the purposes set out in Harper
related to the
individual’s dangerousness, or purposes related to the
individual’s own
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interests where refusal to take drugs puts his health gravely at
risk.” 539 U.S. at
182. The “need to consider authorization on trial competence
grounds will
likely disappear,” the Court explained, if “a court authorizes
medication on
these alternative grounds.” Id. at 183. Thus, a court “asked to
approve forced
administration of drugs for purposes of rendering a defendant
competent to
stand trial . . . should ordinarily determine whether the
Government seeks, or
has first sought, permission for forced administration of drugs
on these other
Harper-type grounds; and, if not, why not.” Id.
E. This Court Adopts an Administrative Exhaustion RequirementIn
United States v. White
In United States v. White, 431 F.3d 431, 435-36 (5th Cir. 2005),
this
Court held before the government may ask a district court to
hold a hearing
under Sell and order involuntary medication to make a defendant
competent to
stand trial, BOP must conduct administrative proceedings under
the 1992
regulations. Id. 435-36 . The Court grounded this ruling in the
administrative
exhaustion doctrine and Sell’s admonition about first
considering medication
on Harper grounds. Id. at 434.
Specifically, under White, before a district court can hold a
Sell hearing
to determine whether involuntary medication is warranted on
competency
restoration grounds, BOP must first hold a hearing under the
1992 regulations
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to determine whether involuntary medication is warranted on
Harper grounds;
that is, whether involuntary medication is “necessary because
the inmate is
dangerous to self or others [or] is gravely disabled.” 28 C.F.R.
§ 549.43(a)(5)
(2010); see White, 431 F.3d at 435-36. If the hearing officer
determines that
involuntary medication is warranted on Harper grounds, BOP may
proceed to
involuntarily medicate the defendant without a judicial hearing.
Harper, 494
U.S. at 228-36. As a practical matter, administering the
medication to alleviate
grave disability or dangerousness will likely also make the
defendant
competent for trial, obviating the need to determine whether
involuntary
medication is independently warranted on competency restoration
grounds.
See Sell, 539 U.S. at 181-83; White, 431 F.3d at 435.
II. Proceedings Below
A. Gutierrez is Indicted for Threatening to Kill the President
andOthers
Gutierrez made repeated phone calls to a Texas television
station in
which he threatened to harm or kill then-President George W.
Bush and
Governor Rick Perry, as well as their wives Laura Bush and Anita
Perry. After
Agent Nguyen Vu of the United States Secret Service visited
Gutierrez about
the calls, Gutierrez left a message on Agent Vu’s voice mail
saying he had
received a command from God and was going to kill Agent Vu,
President
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Obama, and former Presidents George W. Bush and George H.W.
Bush. R 8,
24-26, 57.
Gutierrez was arrested in August 2009 and charged with
threatening to
kill President Obama, in violation of 18 U.S.C. § 871;
threatening to kill former
Presidents George W. Bush and George H.W. Bush, in violation of
18 U.S.C.
§ 879; and threatening to kill Agent Vu, in violation of 18
U.S.C. § 115. R 11
(warrant); R 24-26 (indictment).
B. The District Court Finds That Gutierrez is Not Competent
toStand Trial
Upon motion by the government, the district court ordered a
psychiatric
evaluation of Gutierrez to determine whether he was competent to
stand trial
and whether he was insane at the time of the charged offenses. R
32-33 (order).
Jeremiah Dwyer, Ph.D., a forensic psychologist, evaluated
Gutierrez and
determined that Gutierrez suffered from Schizophrenia, Paranoid
Type and
could not understand the nature and consequences of the
proceedings against
him or assist in his defense. Dkt. 17, at 6-9, 12 (Dwyer
Report). Dr. Dwyer
declined to offer an opinion about Gutierrez’s mental state at
the time of the
offenses, concluding that he could not provide a “thorough
assessment” in
light of Gutierrez’s current mental state. Id. at 12.
On the basis of Dr. Dwyer’s report, the district court concluded
that
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Gutierrez was not competent to stand trial. The court
accordingly committed
Gutierrez to the custody of the Attorney General to be
hospitalized for
treatment and restoration to competency, in accordance with 18
U.S.C. §
4241(d). R 35-36.
C. BOP Determines That Involuntary Medication is Not Warrantedon
Harper Grounds and Refers the Matter to the District Courtfor a
Sell Hearing
On March 8, 2010, Gutierrez was admitted to the Mental
Health
Department of the Federal Medical Center in Butner, North
Carolina. GRE 3
(Williamson-Pyant Report, July 28, 2010). Kwana Williamson, M.D,
and
Carlton Pyant, Ph.D., were assigned to care for him. GRE 23
(Newman
Report, July 28, 2010).
Dr. Pyant and Dr. Williamson diagnosed Gutierrez with
Schizophrenia,
Undifferentiated Type. After Gutierrez refused medication, Dr.
Pyant and Dr.
Williamson highly recommended that Gutierrez by involuntarily
treated with
antipsychotic medication. GRE 33 (Williamson-Pyant Report, July
21, 2010).
According to the doctors, there were no less intrusive means
that would be
effective in achieving restoration of his mental competency.
Id.
Dr. Pyant and Dr. Williamson did not believe that Gutierrez was
a
danger to himself or others within the institutional setting of
FMC Butner.
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GRE 6 (Williamson-Pyant Report, July 28, 2010). Nonetheless, to
comply
with the administrative exhaustion requirements announced in
White, a non-
treating psychiatrist, Ralph Newman, M.D., conducted a hearing
under the
1992 regulations to determine whether involuntary medication was
warranted
on the Harper grounds of dangerousness or grave disability. GRE
13. As
anticipated, Dr. Newman concluded that Gutierrez was neither
gravely
disabled nor a danger to himself or others at FMC Butner. GRE
23, 27
(Newman Report, July 28, 2010); Dkt. 35, at 18 (hearing
transcript).
Dr. Newman did not consider whether involuntary medication
was
warranted to make Gutierrez competent to stand trial. Instead,
Dr. Pyant and
Dr. Williamson sent a report to the district court requesting
that the court hold
a hearing and enter an order under Sell authorizing involuntary
treatment of
Gutierrez with antipsychotic medication. GRE 12-13, 20
(Williamson-Pyant
Report, July 28, 2010).
The report provided a detailed assessment of three of the four
Sell
factors. The report noted that the first factor, whether
important governmental
interests are at stake, “is strictly within the domain of the
Court and will not be
addressed here.” Id. at 11. With respect to the other three
factors, the report
concluded that (1) treatment with antipsychotic medication is
substantially
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likely to render Gutierrez competent to stand trial, GRE 13-15;
(2) involuntary
medication is necessary because alternative, less-intrusive
means would be
unlikely to restore Gutierrez to competency, GRE 15; and (3)
treatment with
antipsychotic medication, and in particular a specific course of
treatment with
the drug Risperdal Consta, is medically appropriate, GRE
15-20.
D. The District Court Holds a Sell Hearing and Orders
InvoluntaryMedication
The district court held a hearing on January 12, 2011, to
determine
whether to order involuntary medication for competency
restoration. Dr.
Williamson testified at the hearing and explained the
recommendations in her
report. She testified, inter alia, that non-pharmacological
treatments were not a
viable alternative to medication, Dkt. 35, at 10 (hearing
transcript), and that
without medication there was no probability Gutierrez would be
returned to
competency, id. at 12.2 The defense offered no evidence and
stated it would
offer “no contrary testimony with regard to” the Sell factors.
Id. at 31, 33.
In an order dated February 3, 2011, the district court concluded
that
involuntary medication was justified in light of the Sell
factors. R 60-63. With
2Dr. Williamson also testified that the effects of Gutierrez’s
mentalillness made it difficult to address his mental state at the
time of the offense.According to Dr. Williamson, participation of a
competent defendant is thepreferred method for evaluating sanity at
the time of the offense. Dkt. 35, at 16(hearing transcript).
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regard to the first Sell factor, the court made the legal
determination that the
government had a strong interest in bringing Gutierrez to trial.
R 60. The court
also found that the remaining Sell factors were satisfied. The
court concluded
that the record evidence established that medicating Gutierrez
is substantially
likely to return him to competency, R 60-61; that less intrusive
treatments are
not viable, and there is no chance of Gutierrez regaining
competency without
medication, R 62; and that administration of antipsychotic drugs
is in
Gutierrez’s best interest in light of his medical condition, R
62-63.
E. Gutierrez Appeals the Involuntary Medication Order
Gutierrez appealed. He argued that before the district court
could enter
an involuntary medication order under Sell, BOP was required to
hold a
hearing under the 1992 regulations to determine whether his
involuntary
medication was warranted on competency grounds. Gutierrez, 443
Fed. Appx.
at 900-01. He also argued, under the first Sell factor, that
important
government interests did not justify his involuntary medication.
Id. at 904.
Gutierrez did not challenge the district court’s determination
with regard to the
remaining three Sell factors. Id.
1. Amended BOP Regulations Take Effect
On August 12, 2011, while Gutierrez’s appeal was pending,
amended
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BOP regulations went into effect. Under the new regulations, a
BOP hearing
officer can order involuntary medication only if it determines
that “the inmate
is dangerous to self or others, poses a serious threat of damage
to property
affecting the security or orderly running of the institution, or
is gravely disabled
(manifested by extreme deterioration in personal functioning).”
28 C.F.R. §
549.46(a)(7) (2012).
Thus the new regulations omit the language that purported to
authorize
BOP to forcibly administer medication (without a judicial
hearing) for
competency restoration. See Psychiatric Evaluation and
Treatment, 73 Fed.
Reg. 33957, 33958 (proposed June 16, 2008) (to be codified at 28
C.F.R. §
549). The current regulations make clear that the BOP hearing
procedures do
“not apply to the involuntary administration of psychiatric
medication for the
sole purpose of restoring a person’s competency to stand trial.”
28 C.F.R. §
549.46(b)(2) (2012). As set forth in the regulations, “[o]nly a
Federal court of
competent jurisdiction may order the involuntary administration
of psychiatric
medication for the sole purpose of restoring a person’s
competency to stand
trial.” Id.
2. This Court Vacates the Order and Remands for
AdditionalAdministrative BOP Proceedings
In a decision dated October 11, 2011, this Court vacated the
district
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court’s Sell order and remanded for further proceedings.
Extending the
administrative exhaustion requirement announced in White, the
Court
concluded that BOP had to hold a hearing “on competency in
accordance with
the 1992 regulations” before the government could seek an
involuntary
medication order in the district court under Sell. 443 Fed.
Appx. at 908. The
Court concluded that the futility exception to the exhaustion
doctrine was not
applicable. Id. at 902-05.
Although the new BOP regulations had gone into effect, the
Court
determined that the 1992 regulations applied to Gutierrez on
remand. The
Court accordingly concluded that enactment of the new BOP
regulations,
which omit the language allowing BOP to consider involuntary
medication on
competency grounds, did not moot Gutierrez’s appeal. Id. at
905-08. Because
the court remanded for additional administrative proceedings,
the Court did
not address Gutierrez’s merits challenge to the district court’s
Sell
determination.
Judge Davis dissented. He would have held that the new BOP
regulations “would apply to Gutierrez on remand, rendering
moot
[Gutierrez’s] request for a hearing under the prior version of
the regulations.”
Id. at 909-12 (Davis, J., dissenting). He also would have held
that even if the
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1992 regulations were to apply to Gutierrez on remand, BOP
should not be
required to hold a hearing on competency. Judge Davis emphasized
that
Gutierrez did not challenge the district court’s findings that
there were no less
intrusive alternatives treatment and that antispyschotic
medication was
medically appropriate and unlikely to result in side effects.
Thus, Judge Davis
concluded, a remand for a hearing on these issues would be
“formalistic ‘make
work’” and would “accomplish nothing.” Id. at 909, 913.
F. BOP Holds a Hearing and Approves Involuntary Medication
ofGutierrez to Make Him Competent to Stand Trial
On October 19, 2011, Gutierrez was provided notice that an
administrative BOP hearing would be held in two days to consider
his
involuntary treatment with psychotropic medication. SR2 66, 77.
Ken Elsass, a
registered nurse, was appointed to be Gutierrez’s staff
representative. SR2 67,
72, 78-79. Elsass spoke with Gutierrez and notified Gutierrez’s
counsel about
the hearing. SR2 79. Gutierrez told Elsass that he had received
orders to cut off
the head of former President Bush and that he was going to “go
on a mission
to kill President Obama, Governor Rick Perry, Secret Service
officers and his
lawyers.” Id.
Dr. Pyant and Dr. Williamson authored a report, dated October
19,
2011, addressed to the hearing officer. The report explained
that Gutierrez was
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not competent to stand trial due to a severe mental illness,
namely
schizophrenia. GRE 2 (Williamson-Pyant Report, October 19,
2011). With
respect to involuntary administration of antipsychotic
medication, the report
concluded that no other less intrusive means are available to
treat Gutierrez’s
mental illness and achieve competency restoration. Id.
Dr. Jean Zula, chief psychiatrist at FMC Butner, held a hearing
on
October 21, 2011. SR2 66-80. Dr. Zula interviewed Gutierrez and
reviewed a
host of materials. Among the materials she considered were the
July 2010 and
October 2011 reports from Dr. Pyant and Dr. Williamson, and
records from
Gutierrez’s prior periods of hospitalization. SR2 68; see GRE
1-20 (July 2010
and October 2011 reports). Dr. Zula also considered “[p]otential
alternatives to
medication.” SR2 69.
Dr. Zula “approved” Gutierrez’s involuntary medication “as
in
[Gutierrez’s] best medical interest.” SR2 73, 76. In a written
“justification” for
her decision, Dr. Zula stated that “there is a substantial
probability that
treatment with antipsychotic medications can restore him to
competency” to
stand trial. SR2 73-75. Dr. Zula discussed Gutierrez’s positive
response to prior
treatment and stated that “[t]reatment with either risperidone
or olanzapine
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-
would most probably be effective in this effort.” SR2 75; see
SR2 73-74.3
Gutierrez appealed Dr. Zula’s decision. SR2 80. He argued that
the
“government is broken and corrupt” and that prison officials had
“neglected
[his] complaints about [his] mail and discrimination.” Id.
Gutierrez said to
“contact the court” for more information, because “[a]s far as I
know the court
knows what they are doing and they shouldn’t take so long to
decide cases.”
Id. He also said he felt like he was “being used and strung
along.” Id.
The warden rejected Gutierrez’s appeal. After reviewing Dr.
Zula’s
report and the evidence presented at the hearing, the warden
determined that
“the hearing afforded [Gutierrez] the required due process under
applicable
regulations and controlling law, and that the decision of the
hearing officer is
supported by the record.” SR2 65. The warden referred the matter
to the
district court for further proceedings, noting that under
“controlling Supreme
Court law” she was “not authorized to approve involuntary
treatment with
psychiatric medication for the sole purpose of restoring a
person to competency
3Gutierrez’s counsel submitted a list of questions he wanted the
hearingofficer to answer. Defense counsel asked Dr. Zula to
address, for example,whether it is “medically ethical, and if so
medically appropriate, to medicate apatient against his will where
the primary purpose of doing so is to restore thepatient’s
competency to stand trial in a criminal case, not treatment of
theillness.” SR2 98-101. Dr. Zula declined to address questions
that were outsidethe scope of the hearing. SR2 75.
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-
to stand trial.” SR2 64-65.
G. The District Court Holds a Second Sell Hearing
The district court held a Sell hearing on January 4, 2012.4
The
government introduced testimony from Dr. Zula. SR2 230-65.
Gutierrez
introduced expert testimony from psychiatrist Robert Cantu, M.D.
SR2 265-
80.
Dr. Zula testified that it would be “medically appropriate” to
treat
Gutierrez with antipsychotic medication, in particular
risperidone or
olanzapine. SR2 235, 238, 240-41. She said that treatment with
antipsychotic
medication is the “standard treatment for individuals with
[Gutierrez’s]
diagnosis,” SR2 235, and is “substantially likely to make him
competent to
stand trial,” SR2 236, 240. Dr. Zula also opined that
antipsychotic medication
is “the only thing that will” return Gutierrez to competency to
stand trial. SR2
236-37. According to Dr. Zula, treatment with antipsychotic
medication is “the
only chance,” the “only plausible way.” SR2 237. Dr. Zula
testified that less
4Before the hearing, Gutierrez sent the district court a letter
in whichclaimed to be “King Blessed the Executioner” and threatened
to kill the districtjudge. SR2 301-03. In addition, at the hearing,
Gutierrez told the district judge,“Your government is going to come
up to me, and I’m going to do what I’mgoing to have to do because
you know that it’s a conspiracy coming from yourpresident to y’all
underneath corrupting the world. . . . Everybody else will getto be
put to death, they will be executed.” SR2 286.
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-
intrusive means, namely “psychological talk therapies,” are not
likely to work.
SR2 238.
Gutierrez’s expert witness, Dr. Cantu, testified that in his
opinion
Gutierrez was insane at the time he threatened to kill the
President and others.
SR2 269-71; see also SR2 153-54 (Dr. Cantu’s written opinion).
Dr. Cantu
further testified, consistent with Dr. Zula’s testimony, that
“the only way
[Gutierrez] can become not psychotic is with antipsychotic
medicine.” SR2
277. According to Dr. Cantu, therapy is “not going to work,” and
there is “no
other way.” SR2 277-78; see also SR2 155 (written opinion of Dr.
Cantu
stating that “the only reasonable treatment [for Gutierrez]
would be
psychotropic, specifically antipsychotic, medication”). Dr.
Cantu said that
there is some risk of side effects with antipsychotic
medication, but they are
“not often significant, and they are most often treatable when
they do arise.”
SR2 271, 278.
Dr. Cantu also praised the work done by BOP medical personnel.
He
said that they “did an amazingly thorough job.” SR2 270. In Dr.
Cantu’s
estimation, “the amount of work that they went through on the
Sell factors
with regard to potential harm and likelihood of restoring
competency . . . was
quite impressive.” SR2 270-71.
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-
H. The District Court Again Approves Involuntary Medication
The district court approved involuntary medication in an order
dated
January 9, 2012. SR2 190-212. As an initial matter, the court
concluded that
BOP adequately complied with the 1992 regulations. The court
said that BOP
arguably failed to comply with the requirement that
Gutierrez’s
“treating/evaluating psychiatrist/clinician . . . be present at
the hearing,”
because Dr. Pyant (a psychologist) was present at his hearing,
and the
regulations arguably require the presence of a treating
psychiatrist. SR2 202.
But the court concluded that a psychologist qualifies as a
“clinician,” and that
in any case Gutierrez was not prejudiced by the presence of a
psychologist
instead of a psychiatrist. SR2 202. The court also concluded
that BOP
complied with the 1992 regulations in all other respects:
Gutierrez received
notice of the hearing; a staff representative was appointed to
represent him; a
non-treating psychiatrist (Dr. Zula) presided over the hearing;
Dr. Zula
approved Gutierrez’s involuntary medication; Dr. Zula prepared a
written
report about her decision; and Gutierrez was given an
opportunity to pursue an
appeal. SR2 201-05.
On the merits, the Court concluded that involuntary medication
is
justified under the four Sell factors. With regard to the first
Sell factor, the
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-
Court concluded that important government interests “weigh
heavily in favor
of involuntary treatment.” SR2 194. The allegations that
Gutierrez made
threats “against the President, former Presidents, their
families, and federal law
enforcement” were “not minor,” the court determined, and showed
the
“importance of the government’s interest in trying Gutierrez.”
SR2 194. The
court rejected Gutierrez’s argument that the government’s
interests were
undermined because he was likely insane at the time of the
offense. SR2 194-
95. Gutierrez “bears the burden of proving” the insanity defense
at trial, the
court explained, and “cannot invoke it as a shield until he has
done so.” SR2
195.
The court also rejected Gutierrez’s argument that alleged
effects on his
right to a fair trial weigh against involuntary medication. SR2
205-06, 208-09.
It is “illogical” to argue that a jury will be more likely to
accept his insanity
defense if he is not returned to competency, the court
determined, because
Gutierrez cannot stand trial if he is not competent. SR2 206.
Moreover, the
court explained, a fact finder will have to determine “whether
Gutierrez was
insane at he time of his alleged offense, not whether he is
insane at the time of
trial,” and there is “no reason” to believe that a fact finder
will not be able to
make that determination “based on the evidence presented
regarding his
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-
condition at the time, not based on his present demeanor.” SR2
206. In sum,
the court concluded, Gutierrez “can have a fair trial without
making a
spectacle of his condition.” SR2 209.
The court also concluded that the remaining three Sell factors
were
satisfied: (1) The evidence established that it is substantially
likely
antipsychotic medication will restore Gutierrez to competency,
the court
determined, and that it is substantially unlikely he will suffer
side effects that
will interfere with his ability to assist counsel with his
defense. SR2 195-96. (2)
Government doctors and Gutierrez’s medical expert agree, the
court explained,
that involuntary medication is necessary to restore Gutierrez to
competency:
there are no alternative, less intrusive treatments that could
achieve
substantially the same results. SR2 197-98. (3) Medical opinion
is similarly
unanimous that administration of antipsychotic medication is in
Gutierrez’s
best medical interest in light of his medical condition.
Treatment with these
drugs is standard for individuals with Gutierrez’s diagnosis,
the court noted,
and he has responded positively to such treatment in the past.
SR2 198-99.
SUMMARY OF ARGUMENT
1. BOP complied with the 1992 regulations. Gutierrez
received
adequate notice that a hearing would be held to consider his
involuntary
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-
medication for competency restoration. He was apprised of his
rights at the
hearing and was appointed a staff representative. Dr. Zula, a
psychiatrist who
was not involved in Gutierrez’s diagnosis or treatment,
conducted the hearing.
A treating clinician was present at the hearing. Dr. Zula
approved involuntary
medication to make Gutierrez competent to stand trial,
determining that such
treatment was in Gutierrez’s best medical interest. Dr. Zula
also prepared a
written report regarding the decision, a copy of which was given
to Gutierrez.
Gutierrez pursued an appeal, which the warden of FMC Butner
rejected.
In particular, Dr. Zula adequately complied with the requirement
that
she “determine whether treatment or psychotropic medication is
necessary in
order to attempt to make the inmate competent for trial.” 28
C.F.R. §
549.43(a)(5) (2010). She determined that antipsychotic
medication, and in
particular risperidone or olanzapine, is likely to make
Gutierrez competent to
stand trial. And after considering potential alternatives to
medication, she
approved involuntary treatment with antipsychotic medication as
in
Gutierrez’s best medical interest.
Assuming arguendo that Dr. Zula’s written report fell short
because it did
not contain an explicit written finding that alternative, less
intrusive treatments
would not be effective, the error was harmless. The
determination that
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-
alternative treatments would not be effective was implicit in
Dr. Zula’s report,
and Dr. Zula testified at the Sell hearing that in her opinion
antipsychotic
medication is the only treatment that would restore Gutierrez to
competency.
Dr. Zula’s opinion is consistent with the conclusions of every
other medical
professional that has evaluated Gutierrez, including Gutierrez’s
own medical
expert.
Gutierrez’s claim that his administrative appellate rights were
prejudiced
does not hold up. He had sufficient notice that Dr. Zula
concluded alternative
treatments would not be effective. And in any event, Gutierrez
has at no point
disputed the medical conclusion that there are no potential
alternative
treatments. There is therefore no basis to conclude he would
have raised a
claim of other potential alternatives had Dr. Zula included an
explicit written
finding in her report.
2. The first Sell factor is satisfied. As an initial matter,
Gutierrez
erroneously claims that defects in the district court’s analysis
require reversal.
He is wrong that the district court employed incorrect
reasoning, but
regardless, the first Sell factor is a legal determination that
this Court reviews de
novo. This Court can therefore affirm on any grounds.
Turning to the merits, important government interests justify
Gutierrez’s
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-
involuntary medication. First, Gutierrez is charged with serious
crimes.
Threatening to kill the President of the United States, two
former Presidents,
and a Secret Service agent are serious offenses. That conclusion
is further
buttressed by the substantial sentence Gutierrez would face if
convicted,
whether measured by the statutory maximum penalty or the
potential
Guidelines sentence.
Second, special circumstances do not offset the government’s
interests in
bringing Gutierrez to trial for these serious crimes:
(a) The possibility of civil commitment does not diminish
the
government’s interests. The potential for civil commitment is
uncertain. Under
the current record, it is not clear that a district court would
find by clear and
convincing evidence that Gutierrez’s release would pose a
substantial risk of
endangering others. In any event, even if civil commitment were
likely, that
factor would not extinguish the government’s interest in
prosecution.
(b) The amount of time Gutierrez has been confined on the
present
charges does not offset the government’s interests. The
government’s interest is
in bringing Gutierrez to trial, not in being ensured a
conviction. Regardless,
Gutierrez faces substantial additional time in prison if
convicted. And there are
additional benefits to a conviction – such as a term of
supervised release –
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-
wholly separate from any period of imprisonment.
(c) Alleged effects of involuntary medication on Gutierrez’s
ability to
mount an insanity defense do not lessen the government’s
interests. There is no
basis in the record to support Gutierrez’s speculation that
medication might
lead to an incorrect evaluation of his mental state at the time
of the offense. In
addition, Gutierrez does not have a right to replicate at trial
his mental state at
the time of the offense. It is not an option in our justice
system for Gutierrez to
remain incompetent and go to trial so that his appearance will
support an
insanity defense.
(d) Finally, the government’s interests are not offset by the
potential that
Gutierrez would be adjudicated not guilty by reason of insanity
at any trial.
The government’s interest is in bringing Gutierrez to trial,
where Gutierrez
would bear the burden of establishing an insanity defense by
clear and
convincing evidence. And even assuming it is likely that a
finder of fact would
adjudicate Gutierrez not guilty by reason of insanity, the
government has a
substantial interest in pursuing that course. An insanity
acquittal triggers the
burden-shifting provisions of the Insanity Defense Reform Act of
1984. The
presumption in favor of confinement triggered by an insanity
acquittal is
conducive to protecting the public safety, because it tends to
ensure
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-
commitment when the dangers posed by an acquittee’s release are
less than
clear. Thus, particularly where the safety of the President and
former
Presidents are at issue, the government has a compelling
interest in obtaining
an adjudication of not guilty by reason of insanity.
ARGUMENT
I. BOP Adequately Complied with the 1992 Regulations
Gutierrez argues that BOP failed to comply with the 1992
regulations, in
particular Section (a)(5) of the 1992 regulations. Br. 16-22. He
asks this Court
to remand to BOP once again for another hearing. Br. 22.
A. Standard of Review
When determining whether an agency has complied with its own
regulations, this Court gives substantial deference to the
agency’s interpretation
and application of those regulations. See Texas Coal. of Cities
for Util. Servs.
v. FCC, 324 F.3d 802, 811 (5th Cir. 2003); Wang v. Ashcroft, 260
F.3d 448,
451 (5th Cir. 2001); see also Auer v. Robbins, 519 U.S. 452, 461
(1997) (an
agency’s interpretation or application of its own regulation is
controlling unless
“plainly erroneous or inconsistent with the regulation”)
(internal quotations
and citations omitted); St. Anthony Hosp. v. U.S. Dep’t of
Health & Human
Servs., 309 F.3d 680, 709 (10th Cir. 2002) (while it is “no
doubt true” that “an
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-
agency is obliged to follow its own rules,” the court gives
deference to “the
agency’s interpretation of the relevant regulations”).
Morever, to obtain relief from an agency’s violation of its
own
regulations, a claimant must show that he was prejudiced by the
violation. See
Hall v. Schweitzer, 660 F.2d 116, 119 (5th Cir. 1981); Seales v.
Holder, 354
Fed. Appx. 875, 879 (5th Cir. 2009) (unpublished); see also
Schaefer v.
McHugh, 608 F.3d 851, 854 (D.C. Cir. 2010) (“A party claiming
harm from an
agency’s failure to follow its own rules must demonstrate some
form of
prejudice.”); Kohli v. Gonzales, 473 F.3d 1061, 1066-67 (9th
Cir. 2007)
(“When presented with allegations that an agency has violated
its own
regulation . . . the claimant must show he was prejudiced by the
agency’s
mistake.”). Harmless error review is also mandated by Fed. R.
Crim. P. 52(a),
which states that in criminal proceedings “[a]ny error, defect,
irregularity, or
variance that does not affect substantial rights must be
disregarded.”
B. Argument
1. The BOP Hearing Complied with the 1992 Regulations
The BOP hearing over which Dr. Zula presided complied with the
1992
regulations in 28 C.F.R. § 549.43 (2010):
! Section (a)(1). Gutierrez was given written notice of the
hearing. SeeSR2 77 (notice of hearing).
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-
! Section (a)(2). Gutierrez was informed of his rights at the
hearing,including his right to present evidence and to have a
staffrepresentative. See SR2 77 (advisement of rights). When
Gutierrezdid not request a staff representative, he was appointed
one. SeeSR2 66-67, 78-79.
! Section (a)(3). The hearing was conducted by Dr. Zula,
apsychiatrist who was not involved in Gutierrez’s diagnosis
ortreatment. See SR2 76, 232.
! Section (a)(4). A treating clinician, Dr. Pyant, was present
at thehearing and provided relevant information to Dr. Zula. See
SR268-69, 232.
! Section (a)(5). Dr. Zula approved involuntary medication to
makeGutierrez competent to stand trial, determining that
suchtreatment was in Gutierrez’s best medical interest. Dr. Zula
alsoprepared a written report regarding the decision. See SR2
73-76(written report).
! Section (a)(6). Gutierrez was given a copy of the report and
advised
he could submit an appeal. See SR2 76. After Gutierrez
submittedan appeal, see SR2 80, the warden made the determination
that“the hearing afforded [Gutierrez] the required due process
underapplicable regulations and controlling law, and that the
decision ofthe hearing officer is supported by the record,” SR2
65.
Gutierrez nonetheless contends that the government “declined to
follow
the regulation applicable to forcible medication.” Br. 16.
Specifically, Gutierrez
claims that Dr. Zula failed to comply with Section (a)(5) of the
1992
regulations, which states in relevant part that “[t]he
psychiatrist conducting the
hearing shall determine whether treatment or psychotropic
medication is
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-
necessary in order to attempt to make the inmate competent for
trial.” 28
C.F.R. § 549.43(a)(5) (2010); see Br. 17-19.
Gutierrez is wrong. Dr. Zula “approved” involuntary treatment
with
antipsychotic medication to make Gutierrez competent to stand
trial. SR2 73.
Dr. Zula considered “[p]otential alternatives to medication,”
SR2 69, but
concluded that medication was “in [Gutierrez’s] best medical
interest,” SR2
73. Dr. Zula determined that “there is a substantial probability
that treatment
with antipsychotic medication will render [Gutierrez] competent
to proceed to
trial,” and in light of his past treatment history concluded
that “either
risperidone or olanzapine would most probably be effective in
this effort.” SR2
75. Thus, Dr. Zula determined that antipsychotic medication is
necessary in
order to make Gutierrez competent for trial.
To be sure, Dr. Zula’s written findings did not use the word
“necessary”
or mimic the language contained in the 1992 regulations, but the
regulations do
not require such formalism. As this Court has explained, under
the 1992
regulations, a hearing officer is “tasked with determining
whether medication
for competency [is] medically proper.” Gutierrez, 443 Fed. Appx.
at 902. The
hearing officer must make “medical findings,” namely “whether
medication
[is] necessary and effective to render a defendant competent.”
Id. at 903. This
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means that the government “must . . . produce[] evidence to
satisfy a
psychiatrist not involved in [the defendant’s] treatment that
medication [is]
justified as a medical determination.” Id. In other words, the
hearing officer – a
“neutral psychiatrist” – must find that “forced medication [is]
medically
justified.” Id. at 906.
Dr. Zula did just that. After interviewing and observing
Gutierrez and
reviewing the reports of his treating clinicians, potential
alternative treatments,
and his past treatment history, Dr. Zula concluded that
involuntary medication
to make Gutierrez competent is in his “best medical interest.”
SR2 73.
According to Dr. Zula, antipsychotic medication, and
specifically risperidone
or olanzapine, is substantially likely to make him competent to
stand trial. SR2
75. Thus, Dr. Zula’s approval of involuntary medication, and
her
accompanying written report, satisfied 28 C.F.R. § 549.43(a)(5)
(2010). See
SR2 66-76 (written report).
Gutierrez suggests that in order to comply with Section (a)(5)
of the 1992
regulations Dr. Zula had to make explicit findings that (1)
antipsychotic
medication is likely to make him competent for trial, (2) such
medication is
medically appropriate, and (3) there are no alternative, less
intrusive means of
making him competent for trial. Br. 21-22. In other words,
Gutierrez appears
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-
to argue that the 1992 regulations required a BOP hearing
officer to make three
of the four findings that a district court must make under Sell
before ordering
involuntary medication for competency restoration.
This claim does not stand up to scrutiny.5 The 1992 regulations
were
enacted 11 years before the Supreme Court decided Sell, and
nothing in the
1992 regulations suggests that BOP anticipated the specific
substantive
standard later announced in Sell. Instead, the 1992 regulations
contain the
more general requirement that a hearing officer “determine”
whether
involuntary medication is “necessary in order to attempt to make
the inmate
competent for trial.” 28 C.F.R. § 549.43(a)(5) (2010). While the
regulations
require the hearing officer to “prepare a written report
regarding the decision,”
id., the regulations do not contain a requirement that the
report contain any
particular findings, let alone specific findings that would
support an
involuntary medication order under Sell.
In any event, even if the 1992 regulations required Dr. Zula to
make the
5Gutierrez’s argument is also in tension with the position he
took beforethis Court at oral argument in the previous appeal in
this case, where defensecounsel said that “the factors in Sell are
different than the factors under theregulations,” and that the
question a BOP hearing officer must address is“whether the proposed
treatment with involuntary medication is medicallyappropriate and
correct.” Oral Argument at 10:45, 13:05, 14:01, United Statesv.
Gutierrez, 443 Fed. Appx. 898 (No. 11-50146), available
athttp://www.ca5.uscourts.gov/OralArgumentRecordings.aspx.
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-
three-part determination suggested by Gutierrez, Dr. Zula
satisfied that
requirement. Dr. Zula plainly made written findings regarding
efficacy and
medical appropriateness: in her written “justification” for her
approval of
involuntary medication, Dr. Zula stated that “there is a
substantial probability
that treatment with antipsychotic medications will render
[Gutierrez]
competent to proceed to trial,” and that in light of his past
treatment history,
“either risperidone or olanzapine would most probably be
effective in this
effort.” SR2 75.
Dr. Zula also made a necessity determination. While Dr. Zula’s
written
“justification” did not use the word “necessary” or explicitly
state that less-
intrusive means would not be effective, her report – considered
in its totality –
shows that she made that determination.6 Most obviously, Dr.
Zula stated that
6Dr. Zula apparently did not use the word “necessary” because of
howshe uses the word in involuntary medication proceedings. In
Sell, the SupremeCourt held that before ordering involuntary
medication a district court mustfind, inter alia, that involuntary
medication is “necessary” to further importantgovernmental
interests. The Court explained that in this context
“necessary”means that “any alternative, less intrusive treatments
are unlikely to achievesubstantially the same results.” 539 U.S. at
181. But Dr. Zula, a medicaldoctor, uses the term “necessary” to
mean “medically necessary,” by whichshe means that an inmate’s
mental illness is “compromising his physicalhealth” or making him
“a danger to himself or others.” ER 234. Thus, Dr.Zula apparently
did not write in her report that medication was “necessary”because,
as everyone agrees, Gutierrez is not gravely disabled or a danger
tohimself or others. Dr. Zula nonetheless made the determination
thatmedication is necessary for purposes of Sell, i.e., that no
other alternative, less
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-
she considered “[p]otential alternatives to medication.” SR2 69.
Her report
also reflects that she considered the July 2010 and October 2011
reports from
Dr. Williamson and Dr. Pyant, SR2 68-69, both of which concluded
that
alternative, less-intrusive treatments would not be effective
with Gutierrez, see
GRE 2, 15. In fact, the lack of effective alternatives to
medication has been a
prominent theme throughout this case. See, e.g., GRE 2, 33; Dkt.
35, at 10
(hearing transcript); R 62. Thus, as the district court
correctly concluded,
implicit in Dr. Zula’s report is the determination that
alternative treatments
would not be effective. SR2 198.
If there was any ambiguity on that score, Dr. Zula eliminated it
at the
Sell hearing. During her testimony, Dr. Zula stated
unequivocally that after
interviewing Gutierrez, talking to him, observing him over time,
and reading
the reports, she concluded that involuntary medication is the
“only plausible
way” to restore Gutierrez to competency. SR2 237. According to
Dr. Zula,
“psychological talk therapies” would not be effective. SR2
238.
Finally, Gutierrez alleges that BOP legal staff and Department
of Justice
lawyers “instructed [Dr. Zula] not to make the finding required
by” Section
(a)(5) of the 1992 regulations and to “ignore [this Court’s]
commands.” Br. 16-
intrusive treatment would be effective.
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-
17. These allegations, which Gutierrez apparently rests on Dr.
Zula’s
testimony at the Sell hearing, are incorrect and unfounded.
Dr. Zula testified to her understanding, based on consultation
with BOP
legal staff, that under Sell an inmate can be forcibly medicated
for competency
restoration only after a district court has approved involuntary
medication.
SR2 234-35, 249-50. As she stated in her hearing report,
“[s]econdary to the
Supreme Court Sell decision, we are unable to treat Mr.
Gutierrez
involuntarily for the purpose of restoring him to competency to
stand trial; that
authority is restricted to the Court.” SR2 167.7 But although
Dr. Zula did not
order prison officials to actually administer medication to
Gutierrez, she
conducted the BOP hearing in manner intended to comply fully
with the 1992
regulations. See SR2 248 (Dr. Zula’s testimony that she met the
criteria of the
1992 regulations); SR2 241 (Dr. Zula’s testimony that she made
findings
regarding medical appropriateness and the necessity of
involuntary
7This position is well founded. As the Ninth Circuit recently
concluded,when involuntary medication is sought solely for trial
competence purposes,“Sell clearly mandates that the district court,
using a higher substantivestandard, make the involuntary medication
determination.” United States v.Loughner, 672 F.3d 731, 754 (9th
Cir. 2012). Thus, under Sell, even if BOPofficials determine that
involuntary medication is warranted to make an inmatecompetent for
trial, it is unconstitutional to administer medication to theinmate
until a federal district court considers the relevant factors and
enters anorder approving involuntary medication.
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-
medication).
In sum, Dr. Zula did not understand herself to be unable to
comply with
the hearing procedures set forth in the 1992 regulations. As the
district court
correctly recognized, the only act Dr. Zula believed that she
was unable to
perform was to “actually order and carry out forced medication”
on
competency grounds. SR2 203. In other words, it was her
(correct)
understanding that Sell requires actual administration of
medication to await
an operative order from the district court. As the district
court concluded,
Gutierrez “can hardly complain about receiving an additional
protection, one
not required by the 1992 regulations; namely, the BOP’s refusal
to medicate
him absent a court order pursuant to Sell.” SR2 204-05 (emphasis
in original).
2. Any Shortcomings in Compliance with the 1992Regulations Was
Harmless
Any failure to comply with the 1992 regulations was
harmless.
Specifically, even if Section (a)(5) of the 1992 regulations
required Dr. Zula to
include in her report an explicit written finding that less
intrusive treatments
would not be effective, Gutierrez was not prejudiced by the
omission of such a
written finding from Dr. Zula’s report.
First, Dr. Zula made a determination that alternative treatments
would
not be effective – i.e., that antipsychotic medication was
“necessary,” as the
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-
term is used in Sell – even if she did not express this
determination in an
explicit written finding. Dr. Zula testified at the Sell hearing
that after
reviewing the relevant reports and examining Gutierrez, she
determined that
no other treatment would be effective in making him competent
for trial. SR2
236-37, 238. This determination was implicit in her report,
which stated that
she considered alternative treatments. SR2 69. Thus, Gutierrez
was “afforded a
determination by a neutral psychiatrist,” Gutierrez, 443 Fed.
Appx. at 906,
that alternative, less intrusive treatments would not make him
competent for
trial.
Second, medical opinion is unanimous that antipsychotic
medication is
the only treatment that will make Gutierrez competent for trial.
Dr.
Williamson and Dr. Pyant opined in their July 2010 report that
involuntary
medication is necessary because alternative, less-intrusive
means would be
unlikely to restore Gutierrez to competency. GRE 15. They
reiterated that
opinion in their October 2011 memo to Dr. Zula. GRE 2. Dr. Zula
concluded
that alternative, less intrusive treatments would not be
effective. SR2 236-37,
238. And on top of that, Gutierrez’s own expert witness
unequivocally agrees
that the only way to make Gutierriez competent is to treat him
with
antipsychotic medication. SR2 155, 277-78. Insofar as this Court
has
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-
concluded that a principal benefit of the 1992 regulations is
that they require a
psychiatrist not involved in the patient’s treatment to provide
a “neutral”
medical assessment, see Gutierrez, 443 Fed. Appx. at 906, there
have now
been two non-treating physicians, Dr. Zula and Dr. Cantu, who
agree that
treatment with antipsychotic medication is the only way
Gutierrez will become
competent for trial. Gutierrez therefore was not prejudiced by
the omission of a
written finding from Dr. Zula’s report that medication is
“necessary.” See
Loughner, 672 F.3d at 754 (finding deficiencies in staff
representative assigned
to Loughner at BOP Harper hearing harmless because three
hearings,
including a federal judicial hearing, “all reached the same
conclusion:
Loughner is a danger and needs to be medicated”).
Gutierrez contends that “[t]he failure to make the requisite
necessity
finding . . . undermined the efficacy of [his] administrative
appeal.” Br. 22.
According to Gutierrez, “[w]ithout the finding, he could not
appeal the crux of
the case.” Id. But Gutierrez had more than adequate notice that
Dr. Zula
determined that alternative treatments were not viable, and
Gutierrez therefore
had an adequate opportunity to raise that issue in his
administrative appeal
even absent an explicit written finding in Dr. Zula’s
report.
Moreover, there is no basis to conclude that Gutierrez would
have
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-
challenged Dr. Zula’s necessity determination had she included
an explicit
finding in her written report. Throughout this case, Gutierrez
has not
challenged the determination that antipsychotic medication is
the only
treatment that would be effective. At the first Sell hearing, he
offered no
evidence to rebut the government’s evidence on the Sell factors.
Gutierrez, 443
Fed. Appx. at 900. On appeal from the district court’s first
Sell order, he did
not challenge the determination that antipsychotic medication
was medically
appropriate and necessary. See id. at 913 (Davis, J.,
dissenting). And at the
second Sell hearing, his own expert testified that antipsychotic
medication is
necessary. It defies common sense to contend that Gutierrez
would have raised
a claim in his administrative appeal that he as repeatedly and
consistently
disclaimed and forgone. Gutierrez’s argument that his
administrative appeal
rights were compromised is meritless.
II. Important Government Interests Justify Gutierrez’s
InvoluntaryMedication
Gutierrez argues that the government has failed to show that it
has
sufficiently important interests to justify his involuntary
medication. Br. 23-37.
In other words, he contends that the district court erroneously
found that the
first Sell factor was satisfied.
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-
A. Standard of Review
Whether governmental interests are sufficiently important to
justify
involuntary medication, the first Sell factor, “is a legal issue
subject to de novo
review.” Palmer, 507 F.3d at 303.
Gutierrez agrees that the first Sell factor is a legal issue and
that this
Court reviews legal conclusions de novo. Br. 23. He nonetheless
contends that
the district court had to find the first Sell factor by clear
and convincing
evidence. Br. 24. That is incorrect. The courts of appeals have
“uniformly
concluded that in Sell cases the government bears the burden of
proof on factual
questions by clear and convincing evidence.” United States v.
Diaz, 630 F.3d
1314, 1331 (11th Cir. 2011) (emphasis added). That is because
the clear and
convincing evidence standard is an intermediate standard of
proof that lies
“between a preponderance of the evidence and proof beyond a
reasonable
doubt.” Addington v. Texas, 441 U.S. 418, 425 (1979). The clear
and
convincing evidence standard therefore applies only to the final
three Sell
factors. See, e.g., United States v. Fazio, 599 F.3d 835, 840
n.2 (8th Cir. 2010).
(“We agree with our sister circuits that the government bears
the burden of
proving the final three Sell factors by clear and convincing
evidence.”).
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-
B. Argument
The government has interests sufficient to justify involuntary
medication
if a defendant is charged with a “serious crime” and “[s]pecial
circumstances”
do not offset the government’s interests in trying the defendant
for that crime.
Sell, 539 U.S. at 180. Gutierrez does not dispute that he has
been charged with
serious crimes. Instead, he argues that special circumstances
undermine the
government’s interests in trying him for those serious crimes.
Br. 27-37. He
also contends that the district court erroneously analyzed
whether important
government interests justify his involuntary medication, and
that this purported
error requires reversal. Br. 24-27.
1. The District Court Did Not Employ an Incorrect Analysis,And
Any Such Error Would Not Require Reversal
Gutierrez contends that the district court only assessed whether
he was
charged with serious crimes and did not determine whether
“special
circumstances” sufficiently offset the seriousness of his
crimes. Br. 26. He is
wrong. The district court considered and rejected Gutierrez’s
claim – which he
renews in this Court, see infra pp. 57-61 – that the government
does not a have
an important interest in bringing him to trial because he was
insane at the time
of the offense. See SR2 194-95. The court also addressed and
rejected
Gutierrez’s claim – again, one he renews in this Court, see
infra pp. 55-57 –
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-
that alleged effects on his fair trial rights weigh against
involuntary medication.
SR2 205-06, 208-09. The district court did not label these
“special
circumstances,” but the court employed the correct method of
analysis.
In any event, any error in the district court’s method of
analysis would
not support reversal. When this Court applies de novo review to
a legal issue, it
can affirm on any grounds, regardless of the reasoning employed
by the district
court. See, e.g., United States v. Dunigan, 555 F.3d 501, 508
n.12 (5th Cir.
2009); Gulf Guar. Life Ins. Co. v. Conn. Gen. Life Ins. Co., 304
F.3d 476, 486
(5th Cir. 2002). Regardless of the district court’s analysis,
this Court ultimately
must consider anew whether the government has important
interests
warranting Gutierrez’s involuntary medication.
Gutierrez suggests that a court’s error in analyzing the first
Sell factor
necessarily infects the court’s assessment of the remaining Sell
factors. See Br.
26-27. But the factual issues presented in the last three Sell
factors – whether
medication is substantially likely to render the defendant
competent to stand
trial, whether less intrusive treatments are unlikely to achieve
substantially the
same results, and whether administration of the drugs is
medically appropriate
– are wholly separate from the purely legal determination
whether “important
governmental interests are at stake.” Sell, 539 U.S. at 180.
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-
2. There Are Important Government Interests in BringingGutierrez
to Trial for Serious Crimes
The “nature [and] effect” of the conduct underlying the charges
against
Gutierrez establish that he has been charged with serious
crimes. United States
v. Valenzuela-Puentes, 479 F.3d 1220, 1226 (10th Cir. 2007).
Gutierrez
threatened to kill the President of the United States, two
former Presidents, and
a law enforcement officer charged with protecting those public
officials. See
United States v. Nicklas, 623 F.3d 1175, 1178, 1180 (8th Cir.
2010)
(transmitting threats to murder an FBI agent a serious crime);
United States v.
Bush, 585 F.3d 806, 814-15 (4th Cir. 2009) (threatening a judge
a serious
crime); United States v. Evans, 404 F.3d 227, 238 (4th Cir.
2005) (threatening
to kill a judge); cf. Palmer, 507 F.3d at 304 (finding it
pertinent that defendant
threatened the life of a federal officer); see generally United
States v. Grape,
549 F.3d 591, 602 (3d Cir. 2008) (severity of the offense
affects weight afforded
governmental interests). The government has a substantial
interest in trying
individuals who threaten to kill public officials, particularly
past and present
Presidents of the United States.
The charges against Gutierrez are also serious when measured by
the
maximum penalty. As this Court noted in Palmer, crimes
authorizing a
punishment of over six months are generally “serious.” 304 F.3d
at 304. The
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-
statutory maximum sentence for two of the charges against
Gutierrez is five
years of imprisonment, see 18 U.S.C. §§ 871(a) & 879(a), and
the third charge
carries a statutory maximum of ten years, see 18 U.S.C. §
115(b)(4). Gutierrez
therefore faces up to twenty years in prison if convicted.
While courts have generally concluded that “it is appropriate to
consider
the maximum penalty, rather than the sentencing guidelines
range, in
determining ‘seriousness’ in involuntary medication
proceedings,” Palmer, 507
F.3d at 304, the charges against Gutierrez must be deemed
serious even if
gauged by the Sentencing Guidelines. See Nicklas, 623 F.3d at
1179 n.5 (while
the projected Guidelines range is relevant, greater weight
should be placed on
the statutory maximum); United States v. Green, 532 F.3d 538,
549-50 (6th
Cir. 2008) (statutory maximum and not Sentencing Guidelines
should be used
to determine whether a crime is serious); Evans, 404 F.3d at
237-38 (focus
should be on the statutory maximum authorized by statute); but
see United
States v. Hernandez-Vasquez, 513 F.3d 908, 919 (9th Cir. 2008)
(concluding
that “the likely guideline range is the appropriate starting
point for the analysis
of a crime’s seriousness”). Although there is currently
insufficient information
to assess Gutierrez’s probable advisory Guidelines range if
convicted, available
information suggests that a Guidelines range close to the
20-year statutory
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-
maximum is possible.8 Moreover, the commentary to the relevant
offense
guideline, Guidelines § 2A6.1, instructs that departures in
cases involving
threats may be warranted because threatening communications can
encompass
a wide range of conduct. See U.S.S.G. § 2A6.1 cmt. 4. Thus, just
as this Court
concluded in Palmer that threatening the life of a federal
officer and causing
substantial disruption might lead a sentencing court to upwardly
depart from
8Gutierrez contends that the “likely advisory guideline range
for hisoffense would be 15 to 21 months imprisonment.” Br. 30 &
n.14; see SR2 92n.7. That is not correct. The base offense level
for each of the three countswould be 12, see U.S.S.G. §
2A6.1(a)(1), and a 2-level enhancement wouldapply because the
offenses “involved more than two threats,” U.S.S.G. §2A6.1(b)(1).
Under Guidelines § 3A1.2, the offense level would be increased by3
levels because the threats were motivated by the victims’ status as
past orpresent government officers, see U.S.S.G. § 3A1.2(a), and
another 6 levelsbecause the applicable offense guideline
(Guidelines § 2A6.1) is “from ChapterTwo, Part A,” U.S.S.G. §
3A1.2(b). In addition, each of the three countsinvolved threats to
different individuals, and under Guidelines § 2A6.1“[m]ultiple
counts involving different victims are not to be grouped under
§3D1.2.” U.S.S.G. § 2A6.1 cmt. 3. Thus, under Guidelines § 3D1.4,
thecombined offense level would be 3-levels above the offense level
for the countcarrying the highest offense level. The total offense
level applicable toGutierrez would therefore be at least 26.
Morever, under the current record, itis not clear whether Gutierrez
would receive a 6-level enhancement for“conduct evidencing an
intent to carry out such threat,” U.S.S.G. §2A6.1(b)(2), or a
4-level enhancement for “substantial disruption of . .
.governmental . . . functions” or “a substantial expenditure of
funds to . . .respond to the offense,” U.S.S.G. § 2A6.1(b)(4). His
total offense level couldtherefore be as high as 36. Assuming
Gutierrez is correct that he falls withinCriminal History Category
III, see SR2 92 n.7, he could face an advisoryGuidelines range of
235 to 293 months of imprisonment.
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-
the advisory Guidelines range, 507 F.3d at 304, the identities
of Gutierrez’s
victims, the number of threats, and Gutierrez’s prior similar
conduct all suggest
that a sentencing judge might depart or vary upward in this
case. The charged
offenses here are serious.
Finally, in addition to the seriousness of Gutierrez’s offenses,
other
factors further buttress the government’s interest in
prosecuting Gutierrez. The
government has a compelling interest, for instance, in sending a
message to the
public that it takes seriously threats to public officials, and
that such threats will
carry consequences. See Bush, 585 F.3d at 815. And Gutierrez has
engaged in
similar conduct in the past, a factor that courts have found
strengthens the
government’s interest in bringing a defendant to trial. See
Nicklas, 623 F.3d at
1180; Grape, 549 F.3d at 602.
3. Special Circumstances Do Not Lessen the
Government’sInterests
Gutierrez identifies four alleged “special circumstances” that
he argues
offset the importance of the government’s interests in bringing
him to trial.
G
